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2018 (7) TMI 1538 - AT - Service TaxCommercial or Industrial Construction Services - services of construction of women hostel for and on behalf of Ministry of Women and Child Development, Government of India - construction of Civil Services Offices Institute - Held that - The services of construction of women hostel for and on behalf of Ministry of Women and Child Development, Government of India and construction of Civil Services Offices Institute are not commercial in nature - Since the demand under commercial or industrial construction for a period upto 30th June, 2012 has been dropped and the period for both the appeals is prior the said date and that the Department has not filed an appeal challenging those findings by virtue whereof the demand in appeal had already been dropped - demand set aside. Maintenance and Power Back up Expenses Recovered from the Clients - power backup provided by the appellant to the sub-contractor - scope of SCN - Held that - It was not at all disputed by the Department as to whether on the power supply/power back up any sales tax has been paid by the appellant or not. Thus, in the impugned order the respective adjudicating authorities have tried to make out a new case against the appellants - The law has been settled that the adjudicating authority cannot go beyond the show cause notice, as it was held by Hon ble Supreme Court in the case of CCE, Bhubaneswar-I vs. Chambdany Industries Ltd. 2009 (9) TMI 7 - SUPREME COURT OF INDIA - the adjudicating authority has committed an error while confirming the impugned remand solely on the basis of lack of evidence qua discharging liability of VAT by the appellant when the same was not the issue in the show cause notices - demand set aside. Payment of Service Tax for the Period Prior to Registration through Cenvat Credit, whether admissible or not? - Held that - It is the apparent and admitted case that the appellant has not discharged the Service Tax for the impugned periods within the stipulated time. Irrespective the payment of the same through the Cenvat Credit availed post the said periods, the fact still remains is that the deficiency has already been made good qua Service Tax for the said periods, however with delay - interest on delayed payment thereupon in accordance of Section 73 (1) of Finance Act, 2004 read with Rule 14 of Cenvat Credit Rules, 2004 is recoverable from the appellants - demand upheld. CENVAT Credit - Common Input Services on account of Appellant being providing Taxable and Exempted Services - Held that - It is clear that Cenvat Credit on input services used for exempted services is not admissible. Any credit taken by the appellant on such input services, as were meant for rendering exempted services, is rightly been denied to the appellant by the adjudicating authority below - It is appellant s admitted case that despite discharging taxable as well as exempted services no separate accounts were maintained. No proper option as enshrined under Rule 6 (3) of CCE, 2004 has been availed - demand upheld. Manpower Recruitment or Supply Agency Services - Services for providing skilled/semi-skilled workmen to assist the contractor in the execution of works - Held that - The activity apparently is not in the negative list i.e. in the entries of Section 66 D nor is the one of mega Notification No. 25/2012- ST dated 20th June, 2012 - the activity has rightly been held taxable for the period w.e.f. 30th June, 2012 - demand upheld. Extended period of Limitation - penalty - Held that - Rendering taxable services without getting themselves registered for discharging their liability qua those services, the same is held to be positive act on part of the appellant with sole intention to evade tax - extended period and penalty upheld. Appeal allowed in part.
Issues Involved:
1. Commercial or Industrial Construction Services 2. Maintenance and Power Back up Expenses Recovered from the Clients 3. Payment of Service Tax for the Period Prior to Registration through Cenvat Credit 4. Inadmissible Cenvat Credit of Common Input Services 5. Services for Providing Skilled/Semi-Skilled Workmen as Manpower Recruitment or Supply Agency Services Issue-wise Detailed Analysis: 1. Commercial or Industrial Construction Services: The appellant argued that the liability for this service was already denied in the original order dated 25th April 2016, which was not challenged by the Department. The Tribunal agreed, referencing the Supreme Court decision in Commissioner, Kerala vs. L&T Ltd. (2015), which held that works contracts are distinct from service contracts and should be taxed separately. Since the demand for the period up to 30th June 2012 was dropped and the Department did not appeal, the Tribunal extended this benefit to the appellant, setting aside the order confirming the levy under this service. 2. Maintenance and Power Back up Expenses Recovered from the Clients: The appellant contended that the adjudicating authority incorrectly confirmed the liability for providing power backup services, despite considering electricity as goods. The Tribunal noted that the Department did not dispute whether sales tax was paid on the power supply in the show cause notices, and the adjudicating authority cannot go beyond these notices. Citing Supreme Court precedents, the Tribunal found that the adjudicating authority erred in confirming the demand based on the lack of evidence of VAT payment, and set aside the findings. 3. Payment of Service Tax for the Period Prior to Registration through Cenvat Credit: The Department alleged that the appellant wrongly utilized Cenvat Credit for the period April 2007 to September 2007 before registration. The Tribunal upheld the adjudicating authority’s decision, stating that the appellant did not pay the Service Tax within the stipulated time, and interest on delayed payment is recoverable under Section 73(1) of the Finance Act, 2004, read with Rule 14 of the Cenvat Credit Rules, 2004. 4. Inadmissible Cenvat Credit of Common Input Services: The appellant argued that the Department failed to specify the common input services for which Cenvat Credit was disallowed. The Tribunal held that Cenvat Credit on input services used for exempted services is not admissible. Since the appellant did not maintain separate accounts for taxable and exempted services or avail the proper option under Rule 6(3) of the Cenvat Credit Rules, 2004, the liability was rightly affirmed by the adjudicating authority. 5. Services for Providing Skilled/Semi-Skilled Workmen as Manpower Recruitment or Supply Agency Services: The appellant claimed it was not a manpower supply agency but had recruited personnel to supervise work executed by sub-contractors. The Tribunal found that the appellant provided not only supervisors but also skilled and semi-skilled workers to contractors for a fee, constituting supply of manpower services. The Tribunal upheld the adjudicating authority’s decision, stating that the appellant’s activity was taxable under Section 65B(44) of the Finance Act, 1994, and the relevant Service Tax Rules and notifications did not apply. Final Judgment: The Tribunal upheld the order in appeal No.52331, confirming the appellant’s liability for rendering Manpower Recruitment and Supply Agency Services. However, it partly allowed appeal No.53500/2014, setting aside the liability for commercial or industrial construction services and maintenance and power back up services. Consequential benefits were to follow. [Pronounced in the open Court on 23.07.2018]
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